Exception
KUDYA J:
On 23 June 2008 the plaintiff issued summons out of this court
against the defendant. After the plaintiff furnished it with the
further particulars it requested, the defendant, inter
alia, excepted to
the summons and declaration on 3 October 2008.
The basis of the exception was that the defendant had ceased to exist
both at the time the cause of action arose and at the institution of
proceedings.
The cause of action arose on 2 September 2007 when the plaintiff was
a fare paying passenger in an Air Zimbabwe aircraft en route from
Singapore to Harare. The summons commencing action was served at the
head office of Air Zimbabwe (Pvt) Ltd.
In his replication filed by his erstwhile legal practitioners Scanlen
and Holderness, the plaintiff averred that the exception was
frivolous and ill conceived and persisted with his assertion that the
defendant was in existence.
It was directed at the pre-trial conference held on 29 May 2009 that
the parties were to file heads of argument on the exception which was
to be argued and disposed of at the commencement of trial.
However, on 26 May 2009 the plaintiff had filed a Notice of Amendment
in which he of his own accord amended some aspects of his
declaration.
This document was not dealt with at the pre-trial conference.
On 7 July 2009 the plaintiff
through his erstwhile legal practitioners filed a notice of
amendment. He indicated his intention to apply at the commencement of
trial to amend his summons and declaration by the addition of “and/or
Air Zimbabwe (Private) Limited after
Air Zimbabwe
Corporation wherever
it appears”.
On 24 July 2009 the excipient filed heads of argument and the
plaintiff did so on 12 August 2009.
It is noteworthy that Messrs Scanlen and Holderness renounced agency
on 17 December 2009; and Messrs Muringi Kamdefwere who took over from
them also renounced agency on 24 June 2010.
In argument before me, the plaintiff relied on the heads of argument
filed on his behalf by his initial legal practitioners.
The issue raised by the exception is whether or not at the time the
cause of action arose and at the time that summons was issued the
defendant was in existence.
Mr Uriri
for the excipient contended that the defendant ceased to exist on 23
March 2000. The plaintiff, on the other hand contended that the
excipient still exists.
It is necessary that I provide a historical overview of the Air
Zimbabwe Corporation in order to place the issue in its proper
context.
There was during the Federation
of Rhodesia and Nyasaland a statutory body called the Central African
Airways Corporation, which had the powers to sue and be sued. On 1
September 1967 the Minister of Transport and Power, acting in terms
of section 9(1) of the Transport Services (Railways and Airways)
(Transition) Act, No. 15/1967, in the Transport Services (Airways)
(Establishment of New Corporation) Notice, RGN 439/1967 dissolved and
replaced it by a corporation of the same name.
The name of the corporation was changed to the Air Rhodesia
Corporation on 11 October 1968 by the Air Rhodesia Corporation Act
No. 32/1968.
During the Zimbabwe Rhodesia era it was renamed the Air Zimbabwe
Rhodesia Corporation.
After independence, it was renamed the Air Zimbabwe Corporation by
the Amendment of Laws Order, SI 236/1980.
On 8 May 1998 the Air Zimbabwe Corporation (Repeal) Act No. 4 of 1998
(The Repeal Act) was brought into operation by General Notice
No.195/1998 which was published in the Government Gazette of that
day.
The purpose of the Repeal Act, as
set out in the preamble was “to provide for the dissolution of Air
Zimbabwe Corporation and the transfer of its functions, assets,
liabilities and staff to a company formed for the purpose; to provide
for the repeal of the Air Zimbabwe Corporation Act [Chapter
13:02]; and to
provide for matters connected with or incidental to the foregoing.”
Section 3 of the Repeal Act
mandated the Minister of Transport and Energy to secure the formation
of a company limited by shares in terms of the Companies Act [Cap
24:03] to succeed
the Corporation. If such a company was in existence before the
commencement of the Act, the Minster was empowered to notify the
Corporation and direct the company to become the successor to the
Corporation.
The company he nominated as the successor company, Air Zimbabwe
(Private) Limited, was already in existence by the time the Repeal
Act was published. It had been incorporated on 20 November 1997.
Section 5(1) of the Repeal Act directed the Minister to fix a date
for the transfer of all assets and liabilities of the Corporation to
the successor company. He duly transferred the assets and liabilities
of the Corporation on 23 March 2000 through General Notice No.
120A/2000.
The Corporation staff, bonds,
hypothecations, deeds, contracts, licences, permits, causes of action
and proceedings were in terms of subsections (2) to (8) of section 5
deemed to have been transferred to the successor company on the
transfer date.
Mr Uriri
contended that the excipient was not in existence in fact and in law
both at the time the cause of action allegedly arose and at the time
the proceedings were launched.
The plaintiff grounded his
contention that the excipient was in existence on the failure by the
President to repeal the Air Zimbabwe Corporation Act in terms of
section 11 of the Repeal Act. Section 11 reads:
“When the President is
satisfied that the assets and liabilities of the Corporation have
been transferred to the successor company and that nothing remains to
be done under this Act, he shall, by statutory instrument, repeal the
Air Zimbabwe Corporation Act [Cap
13:02].”
The factual position is that in
terms of section 5 of the Repeal Act as read with General Notice 120A
of 2000, the excipient was divested of all substance.
In my view it ceased to operate on 23 March 2000.
The legal position that existed after 23 March 2000 was that the
excipient existed in form only, or as was aptly stated by the
plaintiff in his written heads “Air Zimbabwe Corporation does exist
albeit as a shell”.
On 23 March 2000, Air Zimbabwe Corporation ceased to hold any utility
value. It could not transact any business. It did not have a board.
It did not have employees. It did not have assets. It could not
commit acts of commission or omission. It could not execute contracts
or commit delicts. It did not have offices to operate from.
When the alleged cause of action arose on 2 September 2007 and when
the summons was issued on 18 June 2008, the excipient, was neither
dead nor alive. It was in a state of comatose.
The obvious issue that presents itself is whether in that state it
could sue or be sued.
The answer, in my view is found
in section 5(6) of the Repeal Act. It reads:
“Any cause of action or
proceeding which existed or was pending by or against the Corporation
immediately before the transfer date may be enforced or continued, as
the case may be, by or against the successor company on or after the
date of transfer in the same way that it might have been enforced or
continued by or against the Corporation had this Act not been
passed.”
In my view this subsection irrevocably divested the excipient of any
power to sue or to be sued after the transfer date.
Thus the shell that remained by virtue of section 11 of the Repeal
Act could not possibly be seized with the power to sue or be sued.
That right was lost forever on 23 March 2000.
It seems to me that the averment in the exception that the plaintiff
sued the wrong party was properly taken.
The plaintiff sought to cure the
dangers posed by the exception by making an application to amend his
summons commencing action and declaration by adding the words after
the defendant's name 'and/or Air Zimbabwe (Pvt) Ltd'.
He relied on the provisions of
Order 20 Rule 132, which is predicated on the absence of prejudice to
the party against whom the amendment is sought.
Mr
Uriri
contended that the application to amend summons and declaration in
the manner proposed by the plaintiff was a disguised application
firstly for joinder, and secondly for substitution.
He submitted on the authority of
Gariya Safaris (Pvt) Ltd v Van Wyk
1996 (2) ZLR 246 (H)
at 252G-255F that the
summons in the present case was a nullity and as such it could not be
rectified by either substitution or joinder.
In my view, the amendment sought is a novelty in this jurisdiction as
it combines the conjunctive 'and' and the disjunctive 'or'.
Such an amendment is vague and embarrassing and would have to be
struck out.
It does not fulfill the requirements for a joinder which are
contemplated by Order 13 Rule 85 of the rules of court.
The plaintiff failed to demonstrate both some common question of law
or fact and some entitlement to the relief claimed that arises from
transactions performed by both the defendant and Air Zimbabwe (Pvt)
Ltd.
I agree with Mr Uriri
that the plaintiff sought the substitution of Air Zimbabwe (Pvt) Ltd
for the defendant under the guise of an application to amend his
summons and declaration.
The cases cited in the Gariya
case, supra, of Van
Heerden v du Plessis
1969 (3) SA 298 (O); Fosa
v Commercial Properties (Pty) Ltd & Anor
(1996) 2 All SA 611 (D); Dawson
(Bradford) Ltd & Ors v Dove & Anor
[1971] 1 All ER 554
(QB); and Lazard
Brothers & Co v Midrand Bank Ltd
[1933] AC 289 make the point that a summons which is invalid cannot
be rectified by an amendment.
See also Stewart
Scott Kennedy v Mazongororo Syringes (Private) Limited
1996 (2) ZLR 565 (SC).
The application for amendment must fail on the basis that the summons
issued against the defendant was invalid.
In view of the conclusions that I
have reached in regards to the exception and the application to amend
the summons and declaration, it is not necessary for me to determine
the validity of the amendment made mero
motu by the
plaintiff on 26 May 2009.
It is accordingly ordered that:
1. The defendant's exception be
and is hereby upheld.
2. The application to amend the
plaintiff's summons be and is hereby dismissed.
3. The plaintiff's claim
against the defendant be and is hereby dismissed with costs.
Mutumbwa, Mugabe & Associates,
the defendant's legal practitioners
